Commentary By

Michael Berry is deputy general counsel and director of military affairs for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all.

The Supreme Court is currently deliberating over what is arguably the biggest case of the term.

The court heard oral argument on Feb. 27 in The American Legion v. American Humanist Association, a dispute over the constitutionality of a World War I veterans’ memorial. The pending outcome could make it one of the most important First Amendment cases in a generation.

The legal dispute involves the Bladensburg World War I
Veterans Memorial, also known as the Peace Cross. In 1925, Gold Star Mothers
and The American Legion erected the memorial to honor the 49 men from Prince
George’s County, Maryland, who fought and died in World War I.

Sadly, nearly a century after its construction, an activist
organization filed a lawsuit to have the memorial torn down because it happens
to be in the shape of a cross.

Although a trial court judge upheld the memorial’s
constitutionality, a federal appeals court ruled that it is unconstitutional
because, according to the court, it “has the primary effect of endorsing
religion and excessively entangles the government in religion.”

Those words come from the infamous “Lemon test,” named for the 1971 Supreme Court case of Lemon v. Kurtzman. Since 1971, Lemon has been the test used to determine whether the government has violated the First Amendment’s establishment clause, which forbids Congress from making any law “respecting the establishment of religion.”

The test says that a policy or statute is unconstitutional
if a “reasonable observer” perceives it as a government endorsement of
religion.

The Lemon test has led to some absurd outcomes in the real
world. It has been used to strike down numerous displays, from nativity scenes
to veterans’ memorials to Ten Commandments monuments. Surely those who drafted
the First Amendment did not envision a nation purged of all such passive
displays.

The late Justice Antonin Scalia famously referred to it as a
“ghoul in a late-night horror movie.” Justice Clarence Thomas also appears to
be no fan of Lemon, complaining
that the Supreme Court’s “jurisprudence has confounded the lower courts and
rendered the constitutionality of displays of religious imagery on government
property anyone’s guess.”

Although predicting the outcome of a case based purely on oral
argument is daunting, if the oral argument is any indication, Scalia and Thomas
may have larger company.

During the argument, Justice Neil Gorsuch, referring to Lemon as a “dog’s breakfast,” pondered whether the time has come to “thank Lemon for its service and send it on its way.” The court’s newest member, Justice Brett Kavanaugh, added that “the lower courts need some clarity” about whether Lemon has expired.

Lemon’s real damage has been the bitter seeds of religious hostility it has sown into American life. As a constitutional attorney, I’ve lost count of how many government officials have responded in doubt and fear to a complaint about some kind of passive religious display, ultimately capitulating under the threat of a lawsuit.

Notably, Gorsuch pointed out that such lawsuits are an
oddity in the first place.

Any first-year law student can tell you that one of the
necessary elements to a lawsuit is standing. During oral argument, Gorsuch
identified that in arguably no other area of law is a citizen permitted to
bring a lawsuit against the government simply because he or she sees something
they find offensive.

This “offended observer” doctrine is a byproduct of Lemon. But Lemon has another, even more sinister byproduct.

When government officials become wary of any potentially
offended observers in their midst, their default response to any passive
display that even remotely touches on religion becomes “remove it” or “tear it
down.” Those hostile to religious freedom have seized upon this phenomenon and
use it in their crusade to cleanse the public square of any religious symbols.

The time has come, indeed, to thank Lemon for its service and send it on its way. Our judges deserve better, our government officials deserve better, and we deserve better.

The Supreme Court is the last hope for preserving the
Bladensburg World War I Memorial. It may also be the last hope for returning
the First Amendment to its original intent and meaning.

The Daily Signal depends on the support of readers like you. Donate now

Don’t have time to read the Washington Post or New York Times? Then get The Morning Bell, an early morning edition of the day’s most important political news, conservative commentary and original reporting from a team committed to following the truth no matter where it leads.

Email address

Ever feel like the only difference between the New York Times and Washington Post is the name? We do. Try the Morning Bell and get the day’s most important news and commentary from a team committed to the truth in formats that respect your time…and your intelligence.